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However, in civil suits, which is all the RIAA files, it's "not liable" until 51% likely. There's a much lower standard of proof for civil cases - "a preponderance of the evidence."

IANAL, but I asked this guy Google about it and he directed me to this site's page on the legal definition of perjury, and here are a whole lotta case files related to the issue. Some investigation might be merited.

Mod parent up, he's correct, and therefore not trolling (similar to the fact you can't be libelous if you speak in fact), in that the McDonald's coffee case is often incorrectly dragged out as an example of the need for tort reform:
http://lawandhelp.com/q298-2.htm
http://www.lectlaw.com/files/cur78.htm

District court rulings aren't binding on other district courts. See Wikipedia or The 'Lectric Law Library descriptions of precedent.

First: That the person knowingly and willfully devised a scheme to defraud, or for obtaining money or property by means of false pretenses, representations or promises;

Comcast devised a scheme to get rich by selling a promise of unlimited, unfiltered network access and then by failing to fulfill those promises.

Second: That the person knowingly transmitted or caused to be transmitted by wire in interstate commerce some sound for the purpose of executing the scheme to defraud.

Comcast knowingly transmitted by wire "some sound" for the purpose of executing the said schema by reducing the available bandwidth that the subscriber is entitled to. Without this transmission taking place the subscriber would have received the promised service and Comcast would be unable to execute the fraud.

especially in light of the fact that MS refuses to identify these patents?

Well that's their ace in the hole isn't it? As long as they won't identify a specific patent, they aren't limited to a subset of distros that provide, for instance, access to windows shares, ability to read/write ntfs partitions, RDP, or any other MS technologies that *might* be what they're talking about. You can bet that any non-legal personnel at MS will not disclose what patents they refer to outside of a courtroom, because as soon as they do they start limiting themselves.

Actually if MS refuses to identify the patents being violated MS can loose the rights to those patents. It's called Laches, Doctrine Of or Doctrine of Latches.

1) Can threatening people with unnamed patents for an extended time open up defenses of patent misuse? Prosecution latches?

Close, it's called Laches, Doctrine Of or Doctrine of Latches.

Don't these kinds of threats put MS in legal jeopardy? Couldn't Linux companies sue MS claiming that Balmer's statements are harming their business,...

It would seem to me to be a variation of Slander of Title, but whether or not a "variation" counts here I do not know.

With patents it's called Laches, Doctrine Of or Doctrine of Latches. If a patent owner does not enforce those patents they can loose the rights to the patents.

Perhaps patents should have to be actively protected, like trademarks, and if a company lets another company use their patent for too long uncontested it becomes public domain.

Patents have to be protected as it is. If a patent isn't protected, via Laches, Doctrine Of or Doctrine of Latches a patent owner can loose their patent rights if they don't enforce those rights.

There's a tough part of that issue though. When it comes to a legal standpoint they can't look at it as an opinionated issue, which is a problem. It's like a legal grey area that has to be defined in black in white-law is about strictly facts, not opinions (although the latter sways some parts of trials).
Morally - I/most of us don't like it. Factually, if they choose to degrade service, they can do so. The problem is that they might not allow a law to be partial to certain situations. Many companies already do it but how is part of the issue. If everyone's packets but mine have higher priority then the question is whether it can be considered an emotional non-factual decision. If it is just "they have priority" you have 0 in court. But if you have "it was malicious in nature" that is another story. That in itself is hard to pin on a corporation. For better explanation look here: http://www.lectlaw.com/def2/t032.htm - This is the legal definition of Tort. More specifically http://www.lectlaw.com/def2/t061.htm which is tortious wrongful interference. Note the difference between them, yet how close they run to malice. Read very carefully this line: businessman has no legal complaint concerning a loss resulting from lawful competition. Therefore if they don't enforce net neutrality 100% (which can cause its own problems), it can be considered completely lawful. If they do enforce it 100%, well VOIP seems to be a good example. Please note I am not a net neutrality expert not even a network tech, but I read up when I can. Please note that if we don't enforce net neutrality that QOS could be abused in order to bypass direct net neutrality abuse.
This engadget article seems to have some good info as well - http://www.engadget.com/2007/03/29/net-neutrality- and-the-fcc-whats-being-done-to-preserve-it/ - note that the neutrality mentioned here was the exact same google requested for the wireless spectrum. It was not something they created outright. They simply requested the same fairness on wireless as wired networks are supposed to have. Please note as well another side that I'm guessing applies to the "against" net neutrality side is the blocking of zombie PCs. So I think this is a tough one to say how to feel about it. Of course I prefer net neutrality.
I personally say that if we had the bandwith we are supposed to have that such things would not be an issue. If you have 25mb up/down having even decent quality audio while downloading wouldn't matter. That's my own opinion, though, and I have no factual basis to back that up other than saying that VOIP presumably only needs 128K upload/download range. Which is about 1.5mb or something. So no, unfortunately, its not a moral issue. It's a question of whether it is something a business is entitled to if it is a municipal business like cable, where common carrier stands, and other things. At least it seems that way to me. The question is whether comcast/etc is private or not it seems? Sorry I think I'm rambling, I'll stop here.

There's a tough part of that issue though. When it comes to a legal standpoint they can't look at it as an opinionated issue, which is a problem. It's like a legal grey area that has to be defined in black in white-law is about strictly facts, not opinions (although the latter sways some parts of trials).
Morally - I/most of us don't like it. Factually, if they choose to degrade service, they can do so. The problem is that they might not allow a law to be partial to certain situations. Many companies already do it but how is part of the issue. If everyone's packets but mine have higher priority then the question is whether it can be considered an emotional non-factual decision. If it is just "they have priority" you have 0 in court. But if you have "it was malicious in nature" that is another story. That in itself is hard to pin on a corporation. For better explanation look here: http://www.lectlaw.com/def2/t032.htm - This is the legal definition of Tort. More specifically http://www.lectlaw.com/def2/t061.htm which is tortious wrongful interference. Note the difference between them, yet how close they run to malice. Read very carefully this line: businessman has no legal complaint concerning a loss resulting from lawful competition. Therefore if they don't enforce net neutrality 100% (which can cause its own problems), it can be considered completely lawful. If they do enforce it 100%, well VOIP seems to be a good example. Please note I am not a net neutrality expert not even a network tech, but I read up when I can. Please note that if we don't enforce net neutrality that QOS could be abused in order to bypass direct net neutrality abuse.
This engadget article seems to have some good info as well - http://www.engadget.com/2007/03/29/net-neutrality- and-the-fcc-whats-being-done-to-preserve-it/ - note that the neutrality mentioned here was the exact same google requested for the wireless spectrum. It was not something they created outright. They simply requested the same fairness on wireless as wired networks are supposed to have. Please note as well another side that I'm guessing applies to the "against" net neutrality side is the blocking of zombie PCs. So I think this is a tough one to say how to feel about it. Of course I prefer net neutrality.
I personally say that if we had the bandwith we are supposed to have that such things would not be an issue. If you have 25mb up/down having even decent quality audio while downloading wouldn't matter. That's my own opinion, though, and I have no factual basis to back that up other than saying that VOIP presumably only needs 128K upload/download range. Which is about 1.5mb or something. So no, unfortunately, its not a moral issue. It's a question of whether it is something a business is entitled to if it is a municipal business like cable, where common carrier stands, and other things. At least it seems that way to me. The question is whether comcast/etc is private or not it seems? Sorry I think I'm rambling, I'll stop here.

Ok, I admit, I had to look this one up:

Usufruct is the legal right to derive profit or benefit from the property of others. It comes from the latin roots for "use" and "fruits," in the sense that you are using the fruits of someone else's labor.

Wikipedia
Merriam-Webster's Dictionary
a legal Dictionary

In the case of Hansen's second email, he is, I think, using it to describe how captains of industry are benefitting from the global warming nay-sayers' spin on this correction. He also uses it in the sense that successive generations have a right and claim to the enjoy the Earth, so we'd better take care of it, even as we benefit from it.

That last bit - the obligation of the injured party to mitigate damages - will kill Mr. Softie, since they have gone out of their way NOT to mitigate damages by disclosing any infringing patents. The doctrine of laches means they are f$cked.

It's not stealing(http://www.lectlaw.com/def2/s074.htm) or piracy(http://www.lectlaw.com/def2/p050.htm), it's copyright infringement(http://www.techlawjournal.com/glossar y/legal/infringement.asp).

It's not stealing(http://www.lectlaw.com/def2/s074.htm) or piracy(http://www.lectlaw.com/def2/p050.htm), it's copyright infringement(http://www.techlawjournal.com/glossar y/legal/infringement.asp).

And why would the **AA spend all this money, when they can (as I believe they have) just have the court order TorrentSpy to log the relevant info to disk? The government digs deep into a hard drive when it has to, e.g. they reasonably expect to find useful info re a planned terrorist attack

Because the court cannot compel anyone to create a new document in order to produce it in discovery. They can however compel you to transcribe it to another format. If I only keep my data in a propietary binary format that is only readable on my home system, I can be required to reformat the document to a pdf/txt/office/printout/whatever and present the transcribed document.

This judges ruling is definately crafted to work around this fact. By defining RAM as a document, the court can require that it be transcribed & turned over. The issue hinges on if RAM is in fact a document* or not. I checked about 6 law dictionaries, and only 2 of them had any definition for 'document'. The first definition precludes this interpretation as it requires permanence. The 2nd definition might be able to be stretched to fit, but it's a rough go without starting to require conversations to be recorded & prevent people from recording & using anything that happens to touch their computer.

*This legal dictionary defines a document as: n. a popular generic word among lawyers for any paper with writing on it. Technically it could include a piece of wood with a will or message scratched on it.

This one defines it about the same: DOCUMENTS - The deeds, agreements, title papers, letters, receipts, and other written instruments used to prove a fact. Documents is also understood evidence delivered in the forms established by law, of whatever nature such evidence may be, but applied principally to the testimony of witnesses.

1. If the idea of the crime came from the law enforcement agent(s);
2. If the law enforcement agent(s) talked the individual into the crime;
3. If the person was not willing to commit the crime before the agent(s) spoke with them.

Copyright infringement is not stealing, by definition. It doesn't deprive the original author of their work (merely makes a copy of it). Stealing, by definition, removes the item from possession of the original possessor.
See the definition of Stealing to clear up any confusion.
As to the cost of exposure, would you feel comfortable losing a thousand dollars, if you had a couple of hundred thousand in the bank, knowing that in a few years, you'd be having ten thousand come back? Would you still be happy losing that thousand dollars, with the same return, if you had 100 dollars to your name?
Life, by nature is shades of grey, but sometimes, things get to one end of the spectrum or another. This deliberate fraud is pretty much in the clear cut end.

I think the Lanham Act deals with trademarks not patents, but IANAL.

However using unsupported claims to weaken competition could be a violation of anti-trust law.

Of course since Microsoft Just sold thousands of copies of Linux to Dell, they have distributed any possibly infringing material under the GPL. As the owner of that material it is legal for Microsoft to choose the distribution license, but Microsoft now has to abide by the license they have chosen.

From this Groklaw interview with an EFF lawyer who has seen the MS/Novell dael under NDA:

"The deal between Microsoft and Novell also includes some marketing cooperation. Microsoft provides coupons for SUSE to companies, who then go to Novell to redeem the coupons and get their copy of the software. Those coupons procure the conveyance of lots of free software.

Our lawyers have seen the terms of the deal under NDA--unfortunately, they're still secret--but they're confident that Microsoft is already conveying GPLed software under this agreement. The coupons are the most direct proof; there is some other evidence to support that idea as well."

These 'coupons' are called coupons, but are not what most people would consider a 'coupon'. They don't discount the purchase of something from Novell, they are actually a license for a complete copy of Novell's SuSE Linux Enterprise Desktop. Microsoft is like that kid who comes to your door and is selling magazine subscriptions. You'll get the magazine from the publisher, but you pay the kid.

LACHES, DOCTRINE OF - Based on the maxim that equity aids the vigilant and not those who procrastinate regarding their rights; Neglect to assert a right or claim that, together with lapse of time and other circumstances, prejudices an adverse party. Neglecting to do what should or could, have been done to assert a claim or right for an unreasonable and unjustified time causing disadvantage to another.

Laches is similar to 'statute of limitations'

Patents are awarded and are yours until the duration is up.

Please look up laches. While it is true that you don't automatically loose if you don't defend, you still can loose.

Children who refuse to obey their parents are classified by the juvenile laws of many states as incorrigible. Incorrigible children are often referred to as status offenders because they would not be in court but for their status as minors. Incorrigible children may be brought into the court system by police, welfare or school officials or by parents seeking help. http://www.lectlaw.com/files/fam17.htm

IANAL either, but this is the doctrine of unclean hands. It can be used to get the YouTube case laughed out of court. Which it should. Viacom is expecting YouTube to do something Viacom does not do itself on its own, similar website. Buh-bye, Mr. Redstone.

You would have to provide specifics about this TV show to convince me that it was entrapment. Entrapment is defined relatively narrow and the definition only applies to government agents. So I seriously doubt that this TV show is showing "illegal vigilante entrapment." Perhaps it is vigilantism if they are breaking the law somehow but not entrapment.

The only thing companies in sane (i.e., not computer-related) industries are allowed to trademark are logos.

Application to have the sound of Harly Davidson motorcycles trademarked:
http://www.lectlaw.com/files/inp14.htm

On the issue of entrapment the government must prove beyond a reasonable doubt that the defendant was not entrapped by government agents.

You claimed that the defendent must prove entrapment. The reputable source shows that the reverse is true.

- And third, the person was not ready and willing to commit the crime before the government agents spoke with him.

This refutes your point that "You must be "convinced" to do something that you normally would _never_ do. " -- using the definition to which I referred, it would be sufficient to prove that the defendent was not ready at that time to commit the offense.

No, it's not. See http://www.lectlaw.com/files/cur78.htm - McDonalds held a policy of keeping coffee at 185 degrees, when they knew that temperature is enough to cause serious injury. The judge called McDonalds conduct reckless, callous and willful, and in fact consuming the coffee at 185 would cause injury to the throat. If someone is handing out food (particularly fast food - intended to be eaten/drunk immediately) in such a condition that it causes harm once consumed, I think they're in the wrong. And now McDonalds serves coffee at 158 degrees. Lawsuit served its purpose - after 700 people complaining, 1 lawsuit took them to the cleaners and there's no problem anymore.

It's not entrapment. Law enforcement officers engage in sting operations to catch many kinds of criminals. Investigating copyright infringement is no different.

Why is it that McD's now warns you that their coffee is hot?

Because 185 degrees really is too fucking hot for a cuppa. Coffee comes out of a typical home cofeemaker at about 130-140 degrees - the mcDonald's case in question concerned the corporate practice of keeping coffee at 185 degrees.

Read about the case here, and try tuning out the "trial lawyers are evil" gang for a change.

Please stop the fud.

The woman was not driving, she was in the back seat.
The car was at rest when she was burned.
Given that the car was at rest, I doubt (but have no reference for) your supposed 'fact' that she kept going for 20-30 minutes.

Sites that support my version of events:
http://www.lectlaw.com/files/cur78.htm
http://lawandhelp.com/q298-2.htm
http://everything2.com/index.pl?node_id=1107089

If you have contradicting sites, I'm all eyes.

And if the labels were banks, they'd be prosecuted for usury -- at a level even the mob never engaged in.

It occurs to me that prosecution for usury and racketeering may be a much better angle to pursue than the copyright issue.

http://www.lectlaw.com/files/ban02.htm

Clean hands doctrine seems to apply here. I know it was the guys kids not him, but that's the case with many RIAA lawsuits isn't it?

Except in very strange circumstances (usually involving government appropriation of defense-related inventions) there is no way to extend patent rights beyond 20 years. The mickey mouse legislators you refer to are dealing with copyright

It used to be 17 years until 1994 when the legislature decided that it should be 20 years. Patents that were still in effect in 1995 that had been originally granted 17 year rights got extended to have 20 year rights! So yeah the legislature can, and has changed the length of exclusive rights.

http://www.lectlaw.com/files/inp03.htm

And btw, corporations (pharmas especially) are already grumbling that 20 years is not enough.

Anyway I doubt you'll bother reading this.

idiot

> I wish people would read: http://www.lectlaw.com/files/cur78.htm (or
> one of another billions sources or the actual case files) before
> always mentioning "the coffee case."

And I wish senseless money-grubbing lawyers would stop treating an incorrect "lottery litigation" outcome as if it were good, when it isn't:

http://www.overlawyered.com/2005/10/urban_legends_ and_stella_liebe.html

That case encapsulates all that is wrong about the current state of torts and the despicable lawyers who take advantage of their vagaries. Anyone who supports the decision in that case lacks common sense (almost all coffee even today is served at an equal or higher temperature) and is likely to be tort-abusing ambulance-chasing swine not worthy of the practice of law.

I wish people would read: http://www.lectlaw.com/files/cur78.htm (or one of another billions sources or the actual case files) before always mentioning "the coffee case." I am studying to be a lawyer and 9 out of 10 people who reference a case have never read the case, the facts, or otherwise, but still are "horrified" at the results. I was speaking with a Federal Judge yesturday and he told me how people constantly come up to him and call him and activist judge for his decision in XYZ case, but when asked if they've read the case they more than 90% of the time will say no, but they heard about it on the news.

I know this is Slashdot and no one reads that article, but please at least read the points of your post(s), because you only spread more FUD or at the very least misinformation.

Cheers,
    TdC

The dismissal is with prejudice, meaning it can't be refiled at all.

As as mattter of law, this is simply not true.

"PROBABLE CAUSE - A reasonable belief that a person has committed a crime. The test the court...employs to determine whether probable cause existed for purposes of arrest is whether facts and circumstances within the officer's knowledge are sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime. U.S. v. Puerta, 982 F.2d 1297, 1300 (9th Cir. 1992)." Legal Definition of Probable Cause

Federal Tort Claims Act

Like most people when they first heard about the McDonalds case, I thought that it was a stupid verdict. Reading the facts of the case, however, convinces most people otherwise.

http://www.lectlaw.com/files/cur78.htm

Habeas Corpus is not a protection against unreasonable restraint or seizure as the poster is claiming.

Methinks you misinterpret the poster, who was pointing out the the idea behind habeas corpus - restraint on the state's power to lock people up - is the root of restraints on searches, etcetera, and if that root is destroyed, we can look forward to the branches and leaves of other rights we (used to) hold dear, dying quickly.

[Habeas Corpus] is the tenet that requires physical evidence of the crime be presentable before a judge before charges can be brought and has nothing to do with what the poster is claiming.

Not quite. From LectLaw.com:

[Latin for] "you have the body"...A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. ...

The writ of habeas corpus serves as an important check on the manner in which state courts pay respect to federal constitutional rights. The writ is "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." Harris v. Nelson, 394 U.S. 286, 290-91 (1969).

You would think so, but I bet that in a lot of cases, they'd just treat your possession of the contraband as prima facie evidence of a crime.

It's like drug possession -- if the cops toss your car and find a kilo of China White or a handgun with the serial number scratched off in the glove compartment, your insistence that it's not yours may not keep you out of trouble. Just having it, in a place that was under your control, is the crime. A demonstration of intent is not necessary. In effect, it means that the burden of proof is shifted to the defendant to explain themselves, and if they cannot provide a justification for the evidence, they're guilty.

Frankly I think "prima facie" laws in general are a travesty of justice; we ought to abolish the whole philosophy and get back to a more intent-focused jurisprudence. But of course if you tried to do that, you'd be keelhauled for being supportive of crime and criminals, because in the short term it would make the work of the police harder.

In general, a lot of "possession" laws (drug possession, weapon possession, pornography, "burglar's tools") are intentionally written this way so that a demonstration of intent is unnecessary, and many laws include the phrase "prima facie" verbatim. (See this Montana weapon law, for example.)

More information you might want to read:
http://www.lectlaw.com/def2/p078.htm (deals with torts, specifically in employment law, but discussed the general concept)
http://dictionary.law.com/default2.asp?selected=15 98&bold=

Would that be "intentional interference with prospective economic advantage"? ;)

Tepples is trying to apply one case to all music. As I mentioned per our last conversation precedent doesn't stop a judge from ruling different in similiar circumstances. The majority of music presented to the same judge most likely would pass muster. Tepples fearmongering nonwithstanding (he still hasn't read the footnotes like I asked him to)